Einde inhoudsopgave
Towards Social and Ecological Corporate Governance (IVOR nr. 132) 2024/235
235 Self-assessment in annual board statements.
mr. R.A.G. Heesakkers, datum 23-12-2023
- Datum
23-12-2023
- Auteur
mr. R.A.G. Heesakkers
- JCDI
JCDI:ADS944604:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
For statement by the executive board (bestuursverslag): Art. 2:391-2:392 Dutch Civil Code; for statement by the supervisory board: Dutch Corporate Governance Code 2022, best practice 2.3.11 in conjunction with the Dutch Decree on the Content of the Board Statement, Art. 2, 3 & 3a; see also Hijink, Noorloos, Rietveld & In ’t Veld 2019b for more information on the content of the statement by the supervisory board; also section 2.4.3, nr. 40, above.
Cf. Van Dijk & Hijink 2022, par. 2.2.3, for a discussion of the limited assessment by an external accountant in relation to the EU CSRD; and Dutch Corporate Governance Code 2022, best practices 1.4.2 & 1.4.3, regarding the need for the board to self-assess the functioning of their internal moniting systems and to publish an in-control statement.
Biggs, Schluter et al 2012, p. 434, on incomplete knowledge and the inevitable uncertainty in learning about complex systems; also Soonieus, Young et al 2023, p. 12, indicating that 89% of corporate directors rely on internal sources of information for strategic decisions.
Cf. Dutch Corporate Governance Code 2022, best practice 1.3.5, regarding the role of the internal audit committee in relation to the assessment whether the internal monitoring systems are sufficient; also section 7.5.2, nr. 228, above for my recommendation regarding the dual responsibility of the supervisory board.
See particularly Dutch Corporate Governance Code 2022, best practices 1.3.5 (internal report of the internal audit committee), 1.4.2 (statement of the board) and 1.4.3 (in-control statement).
See section 2.4.3, nr. 44, above for a definition of issue 12 (comparable self-assessment).
The other aspect of external board accountability is the board’s and the supervisory board’s account of their decisions and supervision as provided in their respective annual statements.1 In my view, the development towards social and ecological corporate governance increasingly relies on the board to self-assess the impact of its decisions on its social and ecological environment and to reflect on the implications of such an impact.2 Instead of relying on external auditors to assess the legitimacy of board interference with external interests, the complexity of the circumstances in which modern corporations operate requires an internal form of self-assessment and accountability of board interference.3 As discussed earlier, I argue that the supervisory board has a specific responsibility to monitor such self-assessment and to reflect conscientiously on the normative implications of board decisions for social and ecological interests.4
In order for external stakeholders to evaluate such self-assessment, I argue that both the executive board and the supervisory board need to account for their self-assessment and conscientious reflection in their annual statements that are disclosed as part of the annual report. Such conscientious reflection in the annual statements of the board and supervisory board would build on and extend the existing best practices in the Dutch Corporate Governance Code.5 Although such statements may rely heavily on the specific circumstances in which the corporation operates, some references to universal and comparable standards seem to be necessary for the possibility of external evaluation by stakeholders, civil society and in ultimate situations the Enterprise Chamber. I have therefore identified a twelfth and final issue for further research related to such a need for comparable self-assessment.6
ISSUE 12 (COMPARABLE SELF-ASSESSMENT): how should the need for self-assessment by the board be reconciled with the need for comparison of performance by external stakeholders?